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Jurisdiction APA gives general right of review Statutory Review: Used when agency’s enabling act provides a special statutory review proceeding Nonstatutory Review: Derived from general grants of original jurisdiction in federal courts

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Standing (1) Has the complainant alleged “injury in fact”? (2) Is the interest sought to be protected by the complainant “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?”

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U.S. Constitution Article III, Section 2 “Cases and Controversies”

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Injury in Fact (1) Invasion of a legally protected interest which is (a) concrete and particularized (b) actual and imminent, not conjectural or hypothetical

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(2) There must be a “causal connection” between the injury and the complaint; the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court

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(3) It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision

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Zone of Interests Test Prevents standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” “ Rule of self-restraint” “ Rule of self-restraint”

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Exhaustion of Administrative Remedies Court will usually dismiss case if review is sought before plaintiffs have pursued all options for addressing the problem at the agency level Exceptions: -- Agency is clearly exceeding its jurisdiction -- Administrative remedies are inadequate -- Statutory exemption from requirement

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Ripeness and Mootness Courts cannot decide abstract or theoretical claims, or render advisory opinions. Test: whether the issue presented to the court is “fit for review” (the so-called legal fitness test) and whether withholding review would impose a substantial hardship on the party seeking review.

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Standards of Judicial Review

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Steps in Agency Process: Law, Fact, and Discretion Agency interprets the law it is implementing Agency interprets the law it is implementing Agency finds facts about the situation Agency finds facts about the situation Agency uses discretion in applying law to facts Agency uses discretion in applying law to facts

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Standard of Review for Most Agency Decisions APA § 706(2)(a): A court may set aside agency action that is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” A court may set aside agency action that is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.”

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The “Hard Look” Doctrine: Citizens To Preserve Overton Park v. Volpe, 401 US 402 (1971) Must review if there is “law to apply” Must review if there is “law to apply” Court must “make a thorough examination of the entire record” and inquiry into the facts is to be “searching and careful” Court must “make a thorough examination of the entire record” and inquiry into the facts is to be “searching and careful” Standard of review is arbitrary and capricious: “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” Standard of review is arbitrary and capricious: “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” Emphasis on quality of agency’s reasoning Emphasis on quality of agency’s reasoning

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The “Soft Glance”: Vermont Yankee Upheld grant of nuclear power plant licenses despite lower court findings that agency failed to consider or analyze certain environmental effects Upheld grant of nuclear power plant licenses despite lower court findings that agency failed to consider or analyze certain environmental effects Courts cannot impose procedural requirements beyond those in the APA Courts cannot impose procedural requirements beyond those in the APA It is inappropriate for courts to reexamine policy choices under guise of judicial review It is inappropriate for courts to reexamine policy choices under guise of judicial review

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Why Do Agencies Lose Cases? Key Information Not In the Record Key Information Not In the Record Key Scientific Information Ignored Key Scientific Information Ignored Tainted by Ex Parte Contact Tainted by Ex Parte Contact Unreasonably failing to analyze or consider other perspectives Unreasonably failing to analyze or consider other perspectives Drastic, unexplained change in policy Drastic, unexplained change in policy No Intelligible Rationale for Decision No Intelligible Rationale for Decision

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What does the agency have to do to satisfy APA standards? In a nutshell: CLEAR EXPLANATIONS! “The agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” Motor Vehicles, 463 U.S. at 43.